In previous posts, we’ve discussed several chronic conditions that can affect dentists in particular, as their jobs require them to hold unnatural, static positions for extended periods of time while continuously gripping instruments. This puts tremendous stress on their musculoskeletal systems, especially their hands, and this is, in part, why dentists experience nearly four times the prevalence of hand, wrist and arm pain found in the general public.
While most dentists and surgeons are likely familiar with carpal tunnel syndrome, there are other conditions affecting the hands that can be just as debilitating. In this post we will examine the causes, diagnosis, symptoms, and treatment of cubital tunnel syndrome, a similar condition that arises from nerve impingement at the elbow.
Cubital tunnel syndrome is a condition that involves pressure or stretching of the ulnar nerve (also known as the “funny bone” nerve) that runs in a groove on the inner side of the elbow. This can cause numbness or tingling in the ring and small fingers, pain in the forearm, and/or weakness in the hand. Those suffering from cubital tunnel syndrome can find it difficult or impossible to function with the same level of dexterity that they used to have.
Cubital tunnel syndrome occurs when the ulnar nerve becomes compressed or irritated at the elbow, but the exact cause of this is often unknown. There are several factors that can lead to nerve irritation such as:
- Keeping your elbow bent for long periods of time
- Repeatedly bending your elbow
- Leaning on your elbow for long periods of time
- Repetitive activities that require the elbow to be flexed
- Prior fractures or dislocations of the elbow
In order to diagnose cubital tunnel syndrome, a physician will perform a medical history review and physical examination. The examination will include an evaluation of the sensation of the hand and fingers as well as a test of your elbow reflex. Additional screening may be required, including:
- X-rays: to check for bone spurs, arthritis, or other places that the bone may be compressing the nerve
- Nerve conduction studies: to determine how well the nerve is working and to help identify where it is being compressed
- Electromyogram: a test that measures the electrical discharges produced in the muscles
Generalized symptoms of cubital tunnel syndrome include:
- Numbness and tingling in the ring finger and pinky finger, usually occurring when the elbow is bent (such as when driving or holding a phone)
- Feeling of pins and needles or the feeling of the hand “falling asleep” in the ring and pinky finger
- Weakening of the grip and difficulty with finger coordination, especially when manipulating objects
Severe symptoms can include:
- Weakness in the ring and little fingers
- Decreased hand grip
- Muscle wasting in the hand
- Curling up of the pinky and ring finger along with pain, or a claw-like deformity of the hand
Mild symptoms of cubital tunnel syndrome can be managed with home remedies such as:
- Avoiding activities that require you to keep your arm bent for long periods of time
- Avoiding leaning on your elbow or putting pressure on the inside of your arm
- Keeping your elbow straight at night when sleeping by wrapping a towel around your elbow or wearing an elbow pad backwards
- Performing nerve gliding exercise
More severe cases of cubital tunnel syndrome may require medical interventions such as:
- Use of non-steroidal anti-inflammatory drugs (NSAIDs) to reduce swelling around the nerve
- Use of corticosteroids
- Bracing or splinting
- Surgery to increase the size of the cubital tunnel or to transpose the nerve in order to relieve the pressure
These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described above and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.
American Society for Surgery of the Hand, http://www.assh.org
American Academy of Orthopaedic Surgeons, https://orthoinfo.aaos.org/
Mayo Clinic, www.mayoclinic.org
Dental Products Report, dentalproductsreport.com
We’ve talked before about how diabetes can occur in conjunction with other diseases, such as anxiety, or contribute to certain medical conditions, such as radiculopathy. In this post we will be taking a broader look at diabetes and its complications.
Diabetes (diabetes mellitus) refers to a group of diseases, including prediabetes, type 1, type 2, and gestational diabetes. While prediabetes and gestational diabetes can be reversible, types 1 and 2 are chronic and there is currently no cure.
Diabetes can occur either when the pancreas produces very little or no insulin, or when the body does not respond to the insulin that the pancreas does produce. In this post we will examine only types 1 and 2.
Type 1 diabetes typically appears during childhood or adolescence (it is also called juvenile diabetes), and the symptoms come on quickly and are more severe. Type 2 diabetes is more common, and more often occurs in people over 40 (it is often referred to as adult onset diabetes). Those with type 2 diabetes may not exhibit symptoms at first.
- Increased thirst
- Extreme hunger
- Frequent urination
- Unexplained weight loss
- Ketones in the urine
- Blurred vision
- Difficulty breathing
Additional symptoms experienced in Type 2 diabetes include:
- Cuts or sores that are slow to heal
- Itchy skin (often in the groin area)
- Recent weight gain
- Numbness or tingling of the hands and feet
- Impotence or ED
Type 1 diabetes occurs when the body’s immune system destroys the insulin producing cells of the pancreas. Scientists believe that Type 1 is caused by genetic and environmental factors, such as exposure to certain viruses.
Type 2 diabetes is caused primarily by lifestyle factors and genes. Some risk factors include:
- Being overweight
- Lack of physical activity
- High blood pressure
- Abnormal cholesterol and/or triglyceride levels
- Family history (having a parent or sibling with diabetes increases risk)
- History of gestational diabetes while pregnant
- Polycystic ovary syndrome
Diabetes can be diagnosed based on blood tests that show a patient’s blood sugar levels, using a glycated hemoglobin (A1C) test, random blood sugar test, fasting blood sugar test, and/or an oral glucose tolerance test.
With respect to type 1 diabetes, a patient’s urine will be analyzed for ketones, a byproduct produced when muscles and fat are used for energy when the body doesn’t have enough insulin to use available glucose.
While there is no cure for diabetes, ongoing monitoring and management of symptoms is required to prevent serious complications from occurring. Possible treatments include:
- Diet/healthy eating
- Weight loss
- Those with Type 1 diabetes must take insulin because it is no longer made by the body
- Those with Type 2 may need to take insulin, but may also take different medications (such as metformin, which lowers the amount of glucose the liver makes)
- Bariatric surgery
- Artificial pancreas
- Pancreatic islet transplantation
Undiagnosted, untreated, or resistant to treatment, diabetes can have serious health consequences, including:
- Cardiovascular disease;
- Nerve damage (neuropathy), especially in the limbs (which left untreated can result in loss of feeling); nerve damage is also connected to problems with internal organs, weakness, weight-loss, and depression;
- Kidney damage (nephropathy), which may result in the eventual need for dialysis or kidney transplant;
- Eye damage (retinopathy), which may result in cataracts, glaucoma, or blindness;
- Skin conditions, including bacterial and fungal infections;
- Foot damage, which can often lead to the need for amputation;
- Depression; and
- Alzheimer’s disease (type 2 diabetes)—currently there is no agreed upon theory about why there is a correlation between the two diseases.
These posts are for informative purposes only and should not be used as a substitute for consultation with and diagnosis by a medical professional. If you are experiencing any of the symptoms described below and have yet to consult with a doctor, do not use this resource to self-diagnose. Please contact your doctor immediately and schedule an appointment to be evaluated for your symptoms.
Center for Disease Control (CDC), www.cdc.gov
Mayo Clinic, mayoclinic.com
National Institute of Diabetes and Digestive and Kidney Disease, www.niddk.nih.gov
American Diabetes Association, www.diabetes.org
In our last post we discussed why you should not rely solely on your agent’s representations when purchasing a new disability policy. It is similarly important that you not rely solely on your agent to complete the policy application.
While an agent may offer to help you by filling out the application, this could end up negatively impacting a future claim or even voiding your policy down the road, if the application contains any errors or omissions. As explained in our prior posts, while it may seem like telephone interviewers, licensed representatives, agents, and medical examiners have significant control over the application process and whether you receive a policy, many applications have language that explicitly limits your ability to rely upon representations made by such individuals, and expressly places the burden of reviewing the application for accuracy upon you (regardless of who completed the application). Below is a sample of policy language:
Thus, you may speak with several people during the application process, and give them the requested information, but it is ultimately up to you to make sure the information provided to the insurance company is correct. It is therefore very important that you read through your application carefully to make sure it is complete and accurate before signing.
It is also very important that you carefully review your policy when you receive it from the insurance company, and not just file it away without a second thought. When you receive your copy of the full policy, it will typically contain language stating that you have a certain time period (e.g. 10 or 30 days) to review the policy and return it to be voided if it does not contain the terms you expected. This clause will normally be found on the first page of the policy, and typically looks something like this:
If you decide to keep your policy and do not send it back within this review period, you are bound by all provisions of the policy, regardless of whether you are actually aware of them or not. For instance, if you asked your agent for a certain provision and/or requested it on your application, but the insurance company omits it for some reason, and you don’t catch it during this review period, you may end up paying years of premiums for coverage that is different than what you thought you had purchased. Similarly, if your policy contains an unfavorable provision that you didn’t know was going to be in the policy, you will still be bound by it unless you return the policy.
Reading through contracts, especially lengthy insurance ones, can be time consuming. Many policies contain confusing language, terms of art, and often include supplemental riders that change the terms or definitions contained in the main body of the policy. But if you don’t read your policy until it’s time for you to file a claim, you may be caught off-guard by what your policy actually says. This next series of posts will discuss the importance of taking the time to read through your policy, and will review some things to watch out for when you buy a disability insurance policy.
Dentists and physicians are often swamped with work, and rely heavily on insurance agents when selecting and purchasing a policy. One scenario we commonly see is doctors requesting a policy that is “the same” policy that the other doctors in the practice have. Another common scenario is the doctor who wants more coverage and just asks his or her agent for another policy that is “like” his or her existing policy, or has the “same coverage” as his or her existing policy. What they don’t realize is that some of the same favorable terms may no longer be available in today’s policies. For example, while most older policies contained “true own occupation” provisions, there are now several different variations of “own occupation” provisions, so if you just ask for an “own occupation” policy, you may not actually be receiving the coverage that you think you are.
It is also important to be aware that, over the years, insurers have sought to distance themselves from agents and now often go so far as to include clauses or statements in their policies and applications that state no agent or broker has the authority to determine insurability or make, change, or discharge any contract requirement. Here’s an example of this type of policy language:
So what does this mean? It means that, while solely relying upon an agent’s assurance of the terms of a policy may have been a more acceptable (but not advisable) option in the past (when policies were often similar and generally favorable to policyholders), you can no longer solely rely upon your agent’s description of the policy. No matter how well-meaning or knowledgeable your agent may seem, ultimately, you are going to be on the hook if your policy doesn’t say what you thought it said, so it is crucial that you carefully review your disability policy to ensure you are receiving sufficient coverage.
Our next post will discuss the importance of the application process and policy review period.
If you are thinking about filing a disability claim, you are likely wondering whether you will be able to meet your monthly expenses if you’re no longer able to work. You may have made a list of your necessary expenses, and likely included your disability insurance premium payments on that list, as your agent likely told you that your policy would lapse and you would lose your coverage if you missed a premium payment. At this point, you probably started to wonder whether you still have to keep paying the premium after you file the claim, and if so, for how long?
The answer depends on the specific terms of your policy. The paragraph that you’ll want to look for when you’re reviewing your policy is typically titled “waiver of premium,” but some policies address waiver of premiums as part of a larger section of the policy that discusses premiums more generally.
How Do Waiver of Premium Provisions Work?
Generally speaking, waiver of premium provisions state that your insurance company cannot charge premiums during periods of time when you are disabled. A waiver of premium provision typically will also require your insurance company to reimburse you for premiums you have previously paid during your period of disability (i.e. the premiums that you paid while the insurance company was investigating your claim).
Waiver of premium provisions are included in most disability insurance policies. If you are considering purchasing a policy that does not include a waiver of premium provision, you may have the option to purchase a waiver of premium rider.
Here is an example of a waiver of premium provision from an actual disability insurance policy.
Waiver of Premium Benefit
We will waive Premiums of this Policy from the date of Total Disability after the later of:
- 90 consecutive days of Total Disability, or
- The end of the Elimination Period.
When we approve the Waiver of Premium, We will refund any Premiums paid from the first day of Total Disability. Waiver of Premium will continue while You are receiving a Total or Partial Disability Benefit of this Policy or a Rider. When You are no longer eligible for Waiver of Premiums, You must resume payment of Premiums to keep Your Policy in force.
Under this policy, the waiver of premium provision requires you to pay premiums either for 90 consecutive days after you become disabled, or until the end of the elimination period (the elimination period is the number of days you must be disabled before you are entitled to benefits, and is usually noted on the first few pages of a policy).
So, for example, under this policy, once you have been disabled for 90 consecutive days, you no longer would have to pay premiums (at least until you recover from your disability, or your insurer terminates your benefits). You also would receive a refund of any premiums that you paid for any period prior to your date of disability.
Notably, the waiver of premium provision above also requires you to be receiving benefits for the waiver to apply. This is significant because, depending on the terms of your policy, in some cases you could be disabled but not receiving benefits. For instance, your policy might have a foreign residency limitation that prevents you from receiving benefits if you are living in another country, even if you remain disabled. In such a case, you might have to resume paying premiums until you returned to the United States in order to keep your coverage in force.
Timely and proper payment of premiums is critical, as a failure to pay premiums can result in you losing your disability coverage completely. It is important to read your policy carefully so that you have a clear understanding of when you are required to pay premiums, and when you are entitled to a refund of past premiums.
Most insurance companies will provide you with written confirmation that premiums have been waived, and it is best to keep paying your premiums until you receive this written confirmation, even if you think that you no longer have an obligation to pay premiums under the terms of your policy. If you have questions about whether your insurance company should have waived and/or refunded premiums under the terms of your policy, an experienced disability insurance attorney can review your policy and explain your rights and obligations under your particular policy.
Ed Comitz’s Continuing Education course “Disability Insurance Roulette: Why is it So Hard to Collect on My Policy” is now available through Dentaltown. This CE is an electronically delivered, self-instructional program and is designated for 2 hours of CE credit. In this course, Ed discusses why it is so difficult for dentists to collect disability benefits and how to avoid the most common mistakes made by dentists when filing disability claims. Ed also covers the key provisions to look for in disability insurance policies and provides an overview of the disability claims process. Finally, the course discusses how disability insurance claims are investigated and administered, and identifies common strategies used by insurance companies to deny claims.
Information on how to register can be found here.
For more information regarding what to look for in a policy, see this podcast interview where Ed Comitz discusses the importance of disability insurance with Dentaltown’s Howard Farran.
In a previous post, we discussed the importance of how your policy defines the key term “total disability,” and provides several examples of “total disability” definitions. The definition of “total disability” in your policy can be good, bad, or somewhere in-between when it comes to collecting your benefits.
Policies with “true own occupation” provisions are ideal. Here’s an example of a “true own occupation” provision:
Total disability means that, because of your injury or sickness, you are unable to perform one or more of the material and substantial duties of you Own Occupation.
Under this type of provision, you are “totally disabled” if you can’t work in your occupation (for example, you can no longer perform dentistry). This means that you can still work in a different field and receive your benefits under this type of policy.
Insurance companies often try to make other policies look like true own occupation policies, and include phrases like “own occupation” or “your occupation,” but then tack on additional qualifiers to create more restrictive policies.
One common example of a restriction you should watch out for is a “no work” provision. Although these provisions can contain the phrase “your occupation” they only pay total disability benefits if you are not working in any occupation. Here’s an example from an actual policy:
Total disability means solely due to injury or sickness,
- You are unable to perform the substantial and material duties of your occupation; and
- You are not working.
As you can see, under this type of provision, you cannot work in another field and still receive benefits. This can be problematic if you do not have sufficient disability coverage to meet all of your monthly expenses, as you’re not able to work to supplement your income.
A “no work” provision is something that is relatively easy to recognize and catch, if you read your policy carefully. Recently, we have come across a definition of “total disability” that is not so easy to spot, but can dramatically impact you ability to collect benefits. Here’s an example, taken from a 2015 MassMutual policy:
OWN OCCUPATION RIDER
Modification to the Definitions Section of the Policy
Solely for the Monthly Benefits available under this Rider, the definition of TOTAL DISABILITY is:
TOTAL DISABILITY – The occurrence of a condition caused by a Sickness or Injury in which the Insured:
- cannot perform the main duties of his/her Occupation;
- is working in another occupation;
- must be under a Doctor’s Care and
- the Disability must begin while this Rider is In Force.
At first glance, this looks like a standard “own-occupation” provision—in fact, it is entitled “Own Occupation Rider.” But if you take the time to read it more closely, you’ll notice that the second bullet point requires you to be working in another occupation in order to receive “total disability” benefits.
Obviously, this is not a policy you want. If you have a severely disabling condition, it may prevent you from working in any occupation, placing you in the unfortunate position of being unable to collect your benefits, even though you are clearly disabled and unable to work in any capacity. Additionally, many professionals have limited training or work history outside their profession, so it can be difficult for them to find alternative employment or transition into another field—particularly later in life.
These “work” provisions appear to be a relatively new phenomenon, and are becoming increasingly more common in the newer policies being issued by insurance companies. It is crucial that you watch out for these “work” provisions and make sure to read both the policies definition of “own-occupation” and “total disability.” While many plans contain the phrase “own-occupation”, including this example, they often aren’t true own-occupation policies and you shouldn’t rely on an insurance agent to disclose this information. Oftentimes, your agent may not even realize all of the ramifications of the language and definitions in the policy that they are selling to you.
Lastly, you’ll also note that this particular provision was not included in the standard “definitions” section of the policy, but was instead attached to the policy as a “rider,” making it even harder to spot. It’s important to remember that many definitions and provisions that limit coverage are contained in riders, which typically appear at the end of your policy. Remember, you should read any policy from start to finish before purchasing.
Many disability claimants suffering from chronic, intense pain are surprised and disheartened when their reported pain levels are received with skepticism by their insurance company. Since pain is a subjective feeling, treating doctors typically ask patients to self-report their pain on a scale of 0-10, so that they can diagnose and treat the pain. Unfortunately, most insurance companies are unwilling to accept self-reported pain levels and will often try to downplay the severity of the claimant’s pain, citing a lack of objective evidence.
Recently, researchers have developed a technology called functional MRI scans, or fMRIs, for short, which may provide a new way to objectively verify the existence of pain. In this post, we will examine this technology and discuss how it might be used in the context of disability claims.
What is an fMRI?
fMRI scanning is a noninvasive technique used by doctors to map and measure brain activity. More specifically, fMRIs are used to measure and observe increases in MR signal caused by neural activity in the brain. The fMRI data is then analyzed to determine which parts of the brain were active during the scan. The data is then compared to known neurological signatures, or “biomarkers,” to determine if there are any correlations between the neural activity in the brain and the symptoms reported by the patient (such as chronic pain).
The Use of fMRI Scans to Prove Pain
Recently, a number of companies and researchers are focusing on using fMRI scans to produce objective evidence of pain. For instance, Dr. Joy Hirsch, a professor at the Yale School of Medicine, claims to have developed a test that is capable of distinguishing real, chronic pain from imagined pain.
fMRI scans are also now being used to support the cases of claimants in disability cases. For example, a woman in New York recently used an fMRI scan to convince her insurer, after two years of litigation, that her disability claim never should have been denied. An fMRI scan was also recently used in the case of Carl Koch, a truck driver from Arizona who suffered severe burns when the hose of his tanker broke loose and sprayed him with molten tar. Mr. Koch visited Dr. Hirsch, who used functional brain mapping to conclude that Mr. Koch’s pain was real. When the judge ruled that Dr. Hirsch’s testimony would be admissible at trial, the case settled for $800,000 – an amount ten times higher than the company’s original offer.
What the Skeptics Say
The use of fMRI scans to prove pain remains controversial. Some critics argue that the techniques being used in litigation have little support in existing publications. Others, such as Tor Wager, a professor of psychology and neuroscience at UC Boulder, contend that the sample size in available studies is too small. Proponents of fMRI refute both of these claims, arguing that a number of credible studies support the validity of their methods.
The Future of fMRI Scans in Disability Cases
It’s easy to see how fMRI scans could prove useful in a disability claim. For example, many dentists suffer from musculoskeletal disorders, particularly in their spines, that cause chronic, debilitating pain. However, as noted above, these types of claims can be particularly difficult, because many insurance companies refuse to accept a claimant’s self-reported pain levels and limitations. Co-workers, family, and friends can provide statements describing how the dentist’s pain is affecting his performance at work and his quality of life, but once again, insurance companies will typically similarly claim that such statements are “objectively verifiable” evidence of the pain. Sometimes a cervical or lumbar MRI can identify potential causes for the pain, and/or a functional capacity exam (FCE) can help document the limitations the pain is causing—but these types of reports are also commonly challenged by insurance companies intent on denying benefits.
In such a case, an fMRI scan illustrating the doctor’s pain might serve as an additional, objectively verifiable method of establishing the existence of chronic pain. Whether or not insurance companies are willing to accept fMRIs as reliable evidence of pain remains to be seen, and will likely depend, in large part, on how willing courts are to accept fMRIs as admissible evidence of pain. If, in the future, this technology continues to develop and become more precise, and courts and juries demonstrate a willingness to accept fMRIs as proof of pain, fMRIs may eventually be enough to convince insurance companies to accept legitimate disability claims without ever setting foot in a courtroom.
- UC San Diego Sch. of Med., What is fMRI?, available at http://fmri.ucsd.edu/Research/whatisfmri.html.
- Sushrut Jangi, Measuring Pain Using Functional MRI, The New England Journal of Medicine, available at http://blogs.nejm.org/now/index.php/9863/2013/04/10/.
- Steven Levy, Brain Imaging of Pain Brings Success to Disability Claim, EIN Presswire (June 29, 2016), available at http://www.einpresswire.com/article/333249721/brain-imaging-of-pain-brings-success-to-disability-claim.
- Kevin Davis, Personal Injury Lawyers Turn to Neuroscience to Back Claims of Chronic Pain, ABA Journal (Mar. 1, 2016), available at http://www.abajournal.com/magazine/article/personal_injury_lawyers_turn_to_neuroscience_to_back_claims_of_chronic_pain.
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 2
If you are a doctor or dentist and you bought your individual disability insurance policy in the 1980s or 1990s, the medical care provision in your policy likely contains some variation of the following language:
“Physician’s Care means you are under the regular care and attendance of a physician.”
This type of care provision is probably the least stringent of all the care provisions. If your policy contains a “regular care” provision, courts have determined that you are under no obligation to minimize or mitigate your disability by undergoing medical treatment. In other words, you cannot be penalized for refusing to undergo surgery or other procedures—even if the procedure in question is minimally invasive and usually successful.
Let’s look at an actual case involving a “regular care” provision. In Heller v. Equitable Life Assurance Society, Dr. Stanley Heller was an invasive cardiologist suffering from carpal tunnel syndrome who declined to undergo corrective surgery on his left hand. Equitable Life refused to pay his disability benefits, insisting that the surgery was routine, low risk, and required by the “regular care” provision of Dr. Heller’s policy. The U.S. Court of Appeals disagreed, and determined that the “regular care” provision did not grant Equitable Life the right to scrutinize or direct Dr. Heller’s treatment. To the contrary, the Court held that “regular care” simply meant that Dr. Heller’s health must be monitored by a treatment provider on a regular basis.
Unfortunately, the Heller case didn’t stop insurance companies from looking for other ways to control policyholders’ care and threaten denial of benefits. For instance, some disability insurance providers argued that provisions requiring policyholders to “cooperate” with their insurer grants them the right to request that a policyholder undergo surgery. Remarkably, when insurers employ these tactics, they are interpreting the policy language in the broadest manner possible–even though they know that the laws in virtually every state require that insurance policies be construed narrowly against the insurer.
Why would insurance companies make these sorts of claims when it is likely that they would ultimately lose in court? Because insurance companies also know that even if their position is wrong, most insureds who are disabled and/or prohibited from working under their disability policy cannot handle the strain and burden of protracted litigation. They know that if they threaten to deny or terminate benefits, many insureds will seriously consider having surgery—if only to avoid the stress and expense of a lawsuit. Unfortunately, this can lead to insureds submitting to unwanted medical procedures, despite having no legal obligation to do so.
As time went on, and more and more courts began to hold that “regular care” simply meant that the insured must regularly visit his or her doctor, Unum, Great West, Guardian, and other insurers stopped issuing policies containing that language. Instead, insurers started to insert “appropriate care” standards into policies. In the next post, we will discuss this heightened standard and how insurers predictably used it as a vehicle to challenge the judgment of policyholders’ doctors, in a renewed effort to dictate their policyholders’ medical care.
 Casson v. Nationwide Ins. Co., 455 A.2d 361, 366-77 (Del. Super. 1982)
 North American Acc. Ins. Co. v. Henderson, 170 So. 528, 529-30 (Miss. 1937)
 Heller v. Equitable Life Assurance Society, 833 F.2d 1253 (7th Cir. 1987)
Can Your Disability Insurance Company Dictate The Medical Treatment You Must Receive To Collect Benefits? Part 1
Imagine that you are a dentist suffering from cervical degenerative disc disease. You can no longer perform clinical work without experiencing excruciating pain. You have been going to physical therapy and taking muscle relaxers prescribed by your primary care doctor, and you feel that these conservative treatments are helping. Like most dentists, you probably have an “own occupation” disability insurance policy. You are certain that if you file your disability claim, your insurer will approve your claim and pay you the benefits you need to replace your lost income and cover the costs of the medical treatment that has provided you with relief from your pain and improved your quality of life.
You file your claim, submit the forms and paperwork requested by the insurer, and wait for a response. To your dismay, your insurer informs you that its in-house physician has determined that the treatment prescribed by your doctor was inadequate. Your insurer then tells you that you should have been receiving steroid injections into your cervical spine, and tells you that if you do not submit to this unwanted, invasive medical procedure, your claim could be denied under the “medical care” provision in your policy.
You were not aware that such a provision existed, but, sure enough, when you review your policy more carefully, you realize that there is a provision requiring you to receive “appropriate medical care” in order to collect disability benefits. You think that your insurer is going too far by dictating what procedures you should or should not be receiving, but you are afraid that if you don’t comply with their demands, you will lose your disability benefits, which you desperately need.
This is precisely the sort of scenario presented to Richard Van Gemert, an oral surgeon who lost the vision in his left eye due to a cataract and chronic inflammation. Dr. Van Gemert’s disability insurance policies required that he receive care by a physician which is “appropriate for the condition causing the disability.” After years of resisting pressure from his insurers to undergo surgery, Dr. Van Gemert finally capitulated. Once Dr. Van Gemert received the surgery, you might expect that his insurer would pay his claim without further complaint. Instead, Dr. Van Gemert’s insurer promptly sued him to recover the years of benefits it had paid to him since it first asserted that he was required to undergo the surgery.
Unfortunately, “appropriate care” provisions, like the provision in Dr. Van Gemert’s policy, are becoming more and more common. The language in such provisions has also evolved over time, and not for the better. In the 1980s and 1990s, the simple “regular care” standard was commonplace. In the late 1990s and into the 2000s, insurers began using the more restrictive “appropriate care” standard. And, if you were to purchase a policy today, you would find that many contain a very stringent “most appropriate care” standard.
These increasingly onerous standards have been carefully crafted to provide insurers with more leverage to dictate policyholders’ medical care. However, there are several reasons why your insurance company should not be the one making your medical decisions. To begin, if you undergo a surgical procedure, it is you—and not the insurance company—who is bearing both the physical risk and the financial cost of the procedure. Perhaps you have co-morbid conditions that would make an otherwise safe and routine surgical procedure extremely risky. Perhaps there are multiple treatment options that are reasonable under the circumstances. Perhaps you believe conservative treatment provides better relief for your condition than surgery would. These are decisions that you have a right to make about your own body, regardless of what your insurer may be telling you.
In the remaining posts in this series, we will be looking at the different types of care provisions in more detail, and how far insurance companies can go in dictating your care in exchange for the payment of your disability benefits. We will also provide you with useful information that you can use when choosing a policy or reviewing the policy you have in place. In the next post we will be discussing the “regular care” standard found in most policies issued in the 1980s and early 1990s.
 See Provident Life and Accident Insurance Co. v. Van Gemert, 262 F.Supp.2d 1047 (2003)
Dentistry is not an easy profession. The clinical aspects of dentistry are physically and emotionally demanding. Performing repetitive procedures and holding static postures for prolonged periods of time can leave dentists feeling mentally drained, sore and fatigued. And given the frequent exposure to patient anxiety and the need for precision when performing dental procedures, it is not uncommon for dentists themselves to develop anxiety about causing pain to patients or making a mistake when performing a procedure.
The other aspects of dentistry are no less challenging. Many dentists work long hours, which makes balancing work, family, and other responsibilities difficult. Other stressors include difficult and uncooperative patients, dissatisfied patients, finances, business problems, collecting payments, paperwork/bureaucracy, time pressure, cancellations, no-shows—the list goes on and on. And that is not even taking into consideration major stressors, such as staff issues, board complaints, audits, and malpractice lawsuits.
When presented with these difficulties, dentists can become anxious and depressed. Some even seek out mood altering drugs and/or begin to abuse alcohol, in an effort to alleviate the stress.
Thankfully, there are resources available where dentists can turn to for help. Most dental associations have a subcommittee or group designed to provide confidential help to dentists struggling with emotional, mental and/or substance abuse issues.
For example, the Arizona Dental Association (AzDA) has a group called the Dentists Concerned for Dentist Committee (DCD). The DCD is a group of fellow dentists who work with other dentists to help them with substance abuse problems, with an emphasis on “cure and return to practice.” When the DCD is contacted, everything remains strictly confidential, and the State Board is not notified. As explained by the DCD, “[t]here should be no grief or shame in seeking help.” Accordingly, DCD records are “sealed and cannot be accessed by anyone.”
If you are a dentist in Arizona struggling with substance abuse, or you know a dentist who is, consider contacting the AzDA so that a referral can be made to the DCD. You can find the contact information for the AzDA here.
If you live outside Arizona, consider contacting your local dental association to see if it has a similar program.
Remember, it’s ok to ask for help.
“When Life Feels Just Too Hard,” INSCRIPTIONS, Vol. 30, No. 8 (August 2016) at p. 24.
Ed Comitz, one of the firm’s founding members, was recently named as a Top Lawyer in the field of insurance law in Phoenix Magazine’s special, 50th Anniversary Issue.
Mr. Comitz’s practice primarily focuses on helping physicians and dentists secure private disability insurance benefits. Mr. Comitz and the legal team at Comitz | Beethe also represent doctors in several other areas, including practice transitions, employment law, business litigation, estate planning, regulatory compliance, and licensing issues.
In previous posts, we have been looking at the findings from the most recent study on long term disability claims conducted by the Council for Disability Awareness. In this post we will be looking at the types of diagnoses associated with long term disability claims, and which types of claims are most common.
As you can see from the chart above, the most common type of both new and existing long term disability is musculoskeletal disorders—a category which includes neck and back pain caused by degenerative disc disease and similar spine and joint disorders.
This is particularly noteworthy because physicians and dentists, who often have to maintain uncomfortable static postures for several hours each day, are very susceptible to musculoskeletal disorders. In addition, claims involving musculoskeletal disorders can be challenging, because oftentimes there is little objective evidence to verify the pain. If you suffer from degenerative disc disease or a similar disorder, an experienced disability attorney can explain how to properly document your claim to the insurance company.
In previous posts, we have reviewed data collected by the Council for Disability Awareness related to long term disability claims. In the next few posts, we are going to look at the most recent study conducted by the Council for Disability Awareness.
To begin, here are a few of the notable trends that the study revealed regarding the gender, age and occupation of long term disability claimants:
- The majority of long term disability claims are filed by women.
- The average age of long term disability claimants has increased in recent years, with the vast majority of claimants filing between the ages of 50 and 59.
- The number of in-force individual disability policies for business management and administration, physicians and dental professional occupation categories increased, while the number of in-force policies for sales and marketing professionals decreased.
 The Council for Disability Awareness is “a nonprofit organization dedicated to educating the American public about the risk and consequences of experiencing an income-interrupting illness or injury.”
In previous posts, we have discussed how courts and juries have reprimanded Unum and its various subsidiaries for wrongfully denying disability claims. Now, Unum is once again making the headlines—this time for making significant changes to its leadership at the highest levels of the company.
Essentially, Unum is undertaking a widespread overhaul of its upper management. Marco Forato is now the senior vice president for global growth strategy, Steve Mitchell is the new chief financial officer, and Steve Zabel is the new president of the U.S. closed block operations. Additionally, Vicki Gordan has been promoted to senior vice president and chief internal auditor, and Matt Royal is now the chief risk officer for Unum.
While any change of leadership can have substantial ramifications, those insured by Unum should take particular note that Unum has appointed a new “president of the U.S. closed block operations.” “Closed block” refers to Unum’s discontinued product lines, which, according to Unum’s 2014 Annual Report, include long-term care and older individual disability policies. If you are a physician or dentist with a Unum policy, your policy is probably part of Unum’s “closed block” operations.
Unum’s new president of “closed block” operations will likely face a challenging task because any losses suffered from paying out Unum’s old disability policies cannot be offset by new business. Additionally, such “closed block” operations are a relatively new phenomenon in the insurance industry, so there is a very small reserve of historical data for Unum to draw upon.
What does this mean?
Generally speaking, a company does not make such extensive changes without expecting results. Consequently, it is likely that several, if not all, of Unum’s newly appointed leaders will be under substantial pressure to perform. Because fresh leaders often want to leave their own mark on their industry, insureds should pay close attention to any new changes in policy announced by Unum during this transitional period.
More specifically, insureds with older individual disability policies with Unum should be aware that Unum will likely be looking for new, creative ways to deny their claims. If you have such a policy and you feel that Unum has arbitrarily changed your policy’s terms and/or wrongfully denied your disability claim, you should consult with an experienced disability insurance attorney to ensure that Unum’s leadership is not improperly exceeding the scope of their newly acquired authority.